Statute of limitations extended for second and third degree rape

Sep 20, 2019

New York State has expanded the statute of limitations for second and third-degree rape. The time allowed to report the crime is not unlimited, as with first degree rape, but prevention advocates are hopeful the new legislation will increase reporting rates and, in turn, convictions.

"These are ceremonial signing pens...."

Gov. Andrew Cuomo was surrounded by female activists as he signed the expansion bill into law.

"It's not just a change in the law. This is a societal acknowledgement of an injustice that went on for a long time," Cuomo said. "The law said a victim of rape has to bring a claim in five years or they lose their right. Five years is a terribly short period of time if you have any appreciation for what the person went through."

"One out of every six women will be the victim of rape or attempted rape in her lifetime, and we know that in eight of every 10 cases, the victim actually knew her perpetrator," said Michelle Hurd, an actress and activist with TIME'S UP, started in 2017 out of the #MeToo movement by 300 women in the entertainment industry. "The vast majority of rapes are second or third degree rapes: the victim knew her attacker and was coerced into sex. And in the aftermath of assault, so many survivors are afraid to come forward."

However, by the time a survivor may be ready to report the crime to law enforcement, Hurd said time allowed by law to seek a conviction may have run out.

"But not anymore," Hurd said.

"Our voices do matter. Each time one of us stands up to rape culture, we stand up for all of us," said actress and TIME's UP leader Mira Sorvino. "For our daughters, for our sons, for ourselves, for our elders, for everyone, because these sexual crimes are indiscriminate. We are all at risk, so I, we are here to say, 'You are not without recourse. You are not without credibility. You are not without hope.'"

The new law increases the amount of time to bring a second degree rape charge from five to 20 years and a third degree rape charge to 10 years. It also increases the time period victims can bring a civil lawsuit for all these offenses to 20 years, along with eliminating the statute of limitations for first degree incest.

Chelsea Miller, communications director for the New York State Coalition Against Sexual Assault, said this legislation is particularly hopeful, "in the sense it reflects the best research on the impact of trauma on survivors."

"We've seen time and time again that survivors might wait years before disclosing to anyone, let alone reporting to law enforcement or seeking civil legal recourse - and this is particularly the case for people who've experienced sexual violence as minors or while incarcerated or institutionalized," said Miller. "So we hope that extending the statute of limitations will encourage survivors of past sexual violence to come forward and allow them to seek recourse on their own terms. We're really excited about that."

Even so, Miller is concerned about the statue of limitations gap between first degree and second/third degree rape cases.

"Legislation is always going to be flawed in some ways, so we do have a concern that with first degree rape you can initiate a claim at any time. That would be ideal for second and third degree rape. However, extending the statute of limitations at all is a big win," Miller said. "What we do want to do to increase reporting is change the culture surrounding sexual violence and the way that we respond to it."

That is the overall purpose of the law change, according to Sorvino.

"You know it's also the grassroots support that made this happen. This is the will of the people, the tens of thousands who made their wishes known to their elected representatives. This is democracy working," Sorvino said. "There is a hunger out there for justice and we are here to tell all of you that feel that hunger, our voices do matter. Each time one of us stands up to rape culture, we stand up for all of us - and as the numbers swell, so do our results."

"We hear you, we believe you and we will stand with you, and we condemn this behavior as strongly as you do, and we say that as a society," Cuomo said.

A new study of government survey data found 1 in 16 women said they were raped by force or coercion the first time they had sexual intercourse. The study published in the Journal of the American Medical Association on Monday said survivors reported higher rates of unwanted first pregnancy, abortion and an array of other physical and mental health problems.

As far as having the resources to handle any potential increase in cases, Miller said local rape crisis centers are already overworked "and have continued to see an increase in demand for services," due to the culture shift of #MeToo and better understanding sexism.

The NYSCASA website includes an interactive map that allows users to find their local rape crisis center by address or zip code.
Credit NYSCASA

Understanding the Law

Intoxicated people cannot technically be raped under state law, according to Manhattan's top prosecutor earlier this month. However, Cyrus Vance Jr. said that needs to change.

In response to a reporter's question Wednesday, Cuomo acknowledged the "alcohol loophole" that remains, even with his signing the new law. Cuomo said that will be addressed next.

At the end of August, Sen. Alessandra Biaggi (D-Bronx/Westchester) introduced a bill (S6679) that would prohibit the use of evidence of a voluntarily intoxicated victim in sex crimes. The bill would expand the definition of 'mentally incapacitated' to include someone who has become voluntarily intoxicated.

NYSCASA recommends any survivor of rape reach out to a local rape crisis center, even just to talk. A center can help a survivor better understand their trauma and options.

In Erie County, the designated program is Crisis Services’ Advocate Department, which provides free and confidential services to survivors of domestic violence, family violence, sexual assault and/or elder abuse. The department also manages a Sexual Assault Forensic Examiner (SAFE) Program.

"You are never alone. Help is always available at 716-834-3131, our 24-hour hotline," said Advocate Department Director Caitlin Powalski. "Services include assistance through legal, criminal justice and medical systems, as well as therapy for survivors of sexual assault. We respond to local hospitals to provide survivors with immediate support and next step options when they seek help in emergency departments throughout the county."

Powalski said Crisis Services joins rape crisis centers across New York State in congratulating the state for extending the statute of limitations for second and third degree rape.

"Reducing barriers to those seeking justice in the criminal courts for sexual assault is long overdue and Crisis Services applauds Governor Cuomo’s office for its leadership in this progressive movement to hold perpetrators accountable," she said. 

According to New York State law, third degree rape is a class E felony punishable by up to 4 years in prison and up to $5,000 in fines. A person is guilty of rape in the third degree when:

  • He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than 17 years old;
  • Being 21 years old or more, he or she engages in sexual intercourse with another person less than 17 years old; or
  • He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

Second degree rape is a class D felony punishable by 1-7 years in prison and up to $5,000 in fines. A person commits second degree rape when:

  • Being 18 years old or more, he or she engages in sexual intercourse with another person less than 15 years old; or
  • He or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

First degree rape is a class B felony punishable by 5-25 years in prison and up to $5,000 in fines. A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

  • By forcible compulsion; or
  • Who is incapable of consent by reason of being physically helpless; or
  • Who is less than 11 years old; or
  • Who is less than 13 years old and the actor is 18 years old or more.